The Local Government Association has said it is “extremely concerned” that some witnesses to the Grenfell Inquiry could be granted immunity from having any evidence they give used in subsequent prosecutions against them.
The comments from Lord Porter, the LGA’s building safety spokesman, came after the Panel of the Grenfell Inquiry, which is chaired by former Court of Appeal judge Sir Martin Moore-Bick, made a request to the Attorney General to grant witnesses the immunity they sought.
Lawyers to the witnesses had previously made it clear that in the absence of an undertaking those whose interest they represented would be likely to claim privilege against self-incrimination in response to any question which touched on the way in which they performed their functions in relation to the design of the refurbishment, the choice of materials used in it or the way in which the work was carried out.
The Panel said it was likely that others who were involved in the refurbishment were likely to adopt a similar position.
Counsel for the Kensington & Chelsea Tenant Management Organisation, the employees and former employees of Rydon Maintenance (the design and build contractor), and Osborne Berry (the company which fitted the cladding) supported the submissions made on behalf of those seeking immunity.
Their application was resisted vigorously by lawyers to the bereaved, survivors and residents.
The Royal Borough of Kensington and Chelsea did not support the application either, with its QC saying it would encourage all its present and former employees to give evidence openly without claiming privilege.
However, the building control officer at Kensington & Chelsea who was responsible for overseeing the refurbishment project’s compliance with the Building Regulations supported the application and indicated without an undertaking he would not be willing to answer some questions.
The Inquiry Panel said it was “very regrettable that the position likely to be adopted by the witnesses was not made clear months ago when the consequences could have been debated without the disruption to the timetable that has now inevitably occurred, but now that it has been raised, we have no option but to deal with it”.
However, it said that it had come to the conclusion that it would not be possible for the Inquiry properly to fulfil its Terms of Reference if witnesses did not have an assurance that the answers they give to questions will not be used in furtherance of criminal proceedings against them.
“Without an undertaking of the kind described….it is very likely that witnesses who were involved in the procurement and design of the refurbishment, the choice of materials and the execution of the work will claim privilege against self-incrimination, or, if they do not, that they will be considerably less candid than would otherwise have been the case as a result of trying to avoid saying anything that might harm their position in the future,” he added.
The Panel therefore ruled that an undertaking should be sought from the Attorney-General in relation to certain of the modules of the Inquiry.
It stressed that the undertaking sought from the Attorney-General did not grant anyone immunity from prosecution. “It does not apply to any statements or documents already in the possession of the Inquiry and it does not prevent the prosecuting authorities from making use of answers given by one witness in furtherance or proceedings against another.”
In response to Michael Mansfield QC asking why witnesses should be allowed to dictate the terms on which they answer questions, the Panel said: “We can well understand why those whom he represents should see the questions in that light, but the reality is that it is the law which gives them the right not to incriminate themselves and, to the extent that it can be invoked, allows them a measure of control over the course of events.”
Responding to the Panel Inquiry’s ruling, Lord Porter said: “The LGA is extremely concerned at the possibility that some witnesses to the Grenfell Inquiry could be granted immunity from having any evidence they give to the inquiry used in subsequent prosecutions against them.
“The Grenfell Tower fire was an unacceptable failure of building safety that must never be allowed to happen again. All those involved in any way have a duty to fully participate in the inquiry, tell the unedited truth, answer for their actions and accept responsibility for their role in the deaths of at least 72 people and the ongoing trauma inflicted upon the survivors and the bereaved.”
He added: “We are concerned that either granting this request or, if it is denied, any subsequent refusal by witnesses to answer the Inquiry’s questions, will frustrate justice and hamper attempts to learn the lessons of Grenfell - lessons which are all the more urgent given the large number of buildings still covered in dangerous cladding and the subsequent blanket of fear that remains imposed on those who live in them.
“The LGA urges the Attorney General to do everything in his power to ensure the truth comes out in a manner that guarantees those who have a criminal case to answer face justice and does not jeopardise civil litigation against those responsible for rendering buildings unsafe.”
Lord Porter said: “We are particularly concerned to ensure that the truth is fully exposed as swiftly as possibly in order to assist councils, fire authorities and the Government in our joint efforts to remediate dangerous cladding on hundreds of buildings across the country.
“It would be hard to imagine that in the future any council would allow the use of any products manufactured by any company who did not cooperate fully with the inquiry.”